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PETITIONER: STATE OF WEST BENGAL & ORS. ETC.

       Vs.

RESPONDENT: SAMPAT LAL & ORS. ETC.

DATE OF JUDGMENT04/12/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1985 AIR  195            1985 SCR  (2) 256  1985 SCC  (1) 317        1984 SCALE  (2)942  CITATOR INFO :  RF         1985 SC 735  (4)  RF         1991 SC1260  (42)

ACT:      Code of  Criminal Procedure 1973-Death under suspicious circumstances-Allegation of  murder-lnvestigation  still  in the hands  of police-High Court appointing a Special officer to  inquire   into  the   offence-Judicial  interference  in investigation When arises.      "inquiry" and "investigation"-Difference between.      Natural Justice-Letter  to the  Chief Justice  of  High Court.  treated  as  writ  petition-Death  under  suspicious circumstances-Allegation  of   murder-High   Court   issuing direction lo  enquire into  causes of  death-No  opportunity given to  the State  Police  officers-Whether  violative  of principles of Natural justice.      Delhi Special  Police Establishment  Act 1946-ss. 5 and 6-Whether s.6 applicable when Court gives direction to C.B.I to conduct an investigation.

HEADNOTE:      The respondents  addressed two  letters  to  the  Chief Justice of  the Calcutta  High  Court  regarding  mysterious death of  two young  boys living  in Barrackpore  area  near Calcutta alleging, inter alia, that the local police was not conducting the investigation into the unnatural death of the two boys  fairly and  properly and  was trying  to make it a case of  suicide and  requested the  High Court  to order  a thorough investigation  into the  incident by an independent machinery which  would command  confidence and be acceptable to the  local police.  A single  Judge of  the  High  Court, before whom the letters were placed, treated the two letters as a  formal petition  and, without  giving notice  directed issue of  a rule  to the  State of  West  Bengal  and  other authorities to  show cause  why a  writ  in  the  nature  of mandamus  may  not  be  issued  directing  investigation  in accordance with law to be conducted over the unnatural death of the  two boys.  In the meanwhile the Judge also appointed Deputy Inspector General, Central Bureau of Investigation to make as inquiry and report to the High Court as to how 257

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the two  boys met  their death.  The appellants preferred an appeal against  the said  order before  the  Division  Bench which also  confirmed the order of the Single Judge with the modification that  the  DIG,  CBI  will  act  as  a  special officer. Hence this appeal.      The appellants  contended (i)  that the  order  of  the Single Judge  was vitiated  having been made in violation of rules of  natural justice;  (ii) that the order was also bad as the  learned Single Judge had not cared to inform himself as to the stage of investigation and if there was any lacuna therein and  he proceeded  to act on certain assumptions for which there  was no  basis or  foundation, (iii)  that since there  had  been  no  breach  of  duty,  the  court  had  no jurisdiction to  interfere  with  the  investigation  which, under the  law, was  vested in  the police  authorities  and therefore the  directions given  by  the  Single  Judge  and upheld with certain modifications by the Division Bench were not proper.      Allowing the appeal, ^      HELD: 1.  It is  clear from  the order  passed  by  the Learned Single  Judge that  no bearing  was afforded  to the State Government  or its  officers when direction to appoint the special  officer in  whom power  of inquiry  was  to  be vested was  made. There was no basis at that stage to assume that the contents of the letters as also the facts stated in the columns  of the  newspaper had not been contradicted. It was the  State Government  or its  officers who  alone could have authoritatively indicated the facts showing whether the allegations contained in the letters or the newspaper report were true  and if so to what extent or how the investigation was being  carried on and what stage it had reached so as to enable the  court to  come to a prima facie authorities were not discharging properly their statutory obligation to carry out an  investigation But  when no  notice was  given to the State Government  and no opportunity was offered to them, it is difficult  to see  how an ex parte order could be made on such an assumption. If the facts stated in the letter or the writ petition  are credible  and there  is such urgency that the ends  of justice  might be  defeated by not making an ex parte order or giving of notice without ex parte order might lead to aggrevation of oppression or exploitation or removal or elimination  of evidence,  the court  would certainly  be justified in  making an  ex parte  order. But in the instant case, there  were no such circumstances at all and the court could have  very well  issued notice  to the respondents and tried to  find out whether there wag any necessity directing the appointment  of DIG, CBI to act as a Special officer and requiring the  police authorities of the State to extend all possible help as may be required by him. [270C-H: 271A]      (2)  The  appointment  of  a  Special  officer  with  a direction to  enquire into  the commission of an offence can only be  on the  basis that  there has  not  been  a  proper investigation.  There   is  a   well  defined   hierarchical administrative set  up of  the police  in the  State of West Benga1 as  in all  other States  and lo  have created  3 new channel of  inquiry or  investigation is likely to create an impression that  everything is  not well  with the statutory agency 258 and it  is likely  to cast  a stigma  on the  regular police hierarchy. In  the facts  and circumstances  of the  instant case and the nature of the order made in view, the direction to appoint  a Special  officer with powers to inquire should not have  been made  until the  appellants has  been given a

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hearing and  the court  had the papers of investigation laid before  it   for  being   prima  facie  satisfied  that  the investigation had either not been proper or adequate. [271C- E]      (3) Under  the Code  of Criminal  Procedure which  lays down the  procedure to be followed when report of an offence is lodged  with the  police, the  power  to  investigate  is vested in the police. The procedure laid down in the Code is clear and definite. Investigation is a matter for the police under the  scheme of  the Code. Judicial opinion seems to be settled and  there are  several authorities  of the  Supreme Court  where   interference  by   the  Court   into   police investigation has  not  been  approved.  There  is  however. residuary jurisdiction  left in the court to give directions to the  investigating agency  when it  is satisfied that the requirements of  the law  are not  being complied  with  and investigation is  not being  conducted properly  or with due haste and promptitude. The court has to be alive to the fact that the  scheme of  the law  is that  the investigation has been entrusted  to the  police  and  it  is  ordinarily  not subject to the normal supervisory power of the court. But in the instant  case, the  material placed before the court did not justify an exception to be made to the rule indicated by the Supreme  Court and  the appointment of a Special officer was not called for at this state. [262D; 270B; 278H; 279A-C]      State of  West Bengal  v. S.N. Basak [1983] 2 S C.R. 52 S.N. Sharma  v. Bipin Kumar Tiwari & Ors.[1970] 3 S.C.R 946. State of Bihar v J. A. C. Saldanha & Ors. [1980] 2 S.C-R. 16 followed.      kings Emperor  v. Khwaja  Nazir Ahmed  [1944]  L.R.  71 referred to.      Bhagwant Singh  v. Commissioner of Police, Delhi [1983] 3 S C.C. 344 held not applicable.      (4) ’Inquiry’  and ’investigation’  are statutory terms defined in  the Code.  In the instant case whatever name the work entrusted  to the  Special officer be called, there can be no  dispute that  he was required to ascertain facts from the witnesses  and documents, if any, in regard to the death of the  two boys.  This process  necessarily involved a fact finding inquiry  by ordinarily  tapping the  same sources as the investigating  agency was  expected  to  contact.  This, therefore, necessarily  involved a  duplicate investigation. In view  of the  fact that  there were two separate channels Placed in  active charge  of investigation  to be  conducted contemporaneously, confusion  was bound to occur and working of the  two channels  at a  time was likely to prejudice the proper investigation making the exposing of the truth buried under  mystery   more  difficult.  Carrying  this  duplicate process was  not likely  to serve  the cause  of justice nor help in  achieving the  object for which it had been set up. The Special  officer was not to exercise the power under s.5 of the  Delhi Special  Police Establishment Act 1946, and if be wanted any real 259 assistance in  the matter  of investigation,  it had  to  be carried  through   the  police   officers   of   the   State Administration. This was likely to bring in futher confusion in as  much as  the witnesses were likely to be contacted by the same police office on more than one occasion-once in the course of investigation conducted by the police and again to meet the  requirements of  the Special  officer. We are sure that the  High Court  never intended the cause of justice to be prejudiced  and the serious attempt to find out the truth to be aborted. [273D-F; H; 274A-C]      (5)  While  section  6  of  the  Delhi  Special  Police

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Establishment Act  1946 would  require the  consent  of  the Slate Government  before jurisdiction  under s.5 of that Act is exercised  by  officer  of  that  establishment,  when  a direction is  given by  the court  in an  appropriate  case, consent envisaged  under s.6  of the  Act  would  not  be  a condition precedent to compliance with the court’s direction Section 6 of the Act does not apply when the court C gives a direction to the C.B.I. to conduct an investigation. In this view, the impugned order of the learned single judge and the appellate decision of the Division Bench appointing DIG, CBI to inquire  into the  matter would not be open to attack for want of sanction under s.6 of the Act. [269B-D]      (6) ln  the instant  case, the Court allowed the appeal and set  aside the  order  of  appointment  of  the  Special officer and  observed that the investigation carried out has not been  quite satisfactory.  However,  in  the  facts  and circumstances of  the case,  there is  no necessity  to take away the  investigation from  the hands  of the State Police machinery which  is the  statutory agency. The court pointed out that  though there  are occasions  when death  remains a mystery in  spite of the best of efforts, it hopes that with an honest attempt and since efforts made, the truth would be found out  and the  police authorities of the State would be in a  position to  give a  creditable account of themselves. The court  also  suggested  that  the  Director  General  of Police, West  Bengal, will  appoint a  competent supervisory officer from  the higher  ranks of  the  State  police  with expertise in investigation to supervise the investigation in the present case. [279D; 282E-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 570 of 1983.      From the Judgment and order dated 27the September, 1983 of the  Calcutta High  Court in C.R. No. (W) of 1983 arising out of original order Tender No. 1583 of 1983.                             WITH      Petition for Special Leave to Appeal (Crl.) No. 2671 of 1983. From the Judgment and order dated 27th September, 1983 of the  Calcutta High  Court in C.R. No. (W) of 1983 arising out of original order Tender No. 1 583 of 1983. 260      Somnath Chatterjee,  HK Puri,  S. Ghosh and VK Behl for the petitioners.      Ashok Sen,  Shankar  Das  Banerjee,  DN  Das  and  Shri Narain, for the respondents.      KG Bhagat, Additional Solicitor General. RN Poddar Miss      Halida Khatoon for the Union of India.      The Judgment of the Court was delivered by      RANGANATH MISRA, J. The appeal is under Article 134 (a) with leave  from the  Calcutta High  Court and  is  directed against the judgment of a Division Bench of that Court dated September 27,  1983. The  Special Leave  Petition  is  under Article 136 of the Constitution and is also directed against the same decision. Both these matters are thus connected and arise out of the incident relating to the death of two young boys of  Barrackpore area  near Calcutta.  This judgment  of ours will dispose of both the matters.      Two letters, one by one Sampat Lal, respondent I in the criminal appeal  and another  by respondents l (a) to I (n), both dated June 1, 1983, were received by the learned Acting Chief Justice of the Calcutta High Court. The letter sent by Sampat Lal  alleged that  two young boys by names Tirthankar

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Das Sharma  and Sanjib  Chatterjee,  living  in  Barrackpore area, were  missing since  the afternoon  of March  2, 1983. Information was  given at  the local  police station late at night on  the same  day and wide publicity that the two boys were missing  but no information about their whereabouts was received till  April 5, 1983. On that day it transpired that dead bodies  of two  boys had  been found  from the  railway track near Pandua railway station and they had been disposed of by  the local  police without  taking any steps for their identification. Verification  of the  photographs maintained by the  Railway Police  at Bandel and the wearing apparel of the two  boys kept  at the  police station clearly indicated that the  dead bodies  were of  the two  missing  boys.  The letter  alleged  that  the  parents  of  the  two  boys  had approached several  authorities including the Chief Minister of the  State. Without  taking any  serious  notice  of  the matter, the  Chief Minister  was  alleged  to  have  made  a statement to the effect even before com- 261 petion of  the investigation  that it was a case of suicide. From the  A reports  published in  a  Bengali  newspaper  it appeared that  the two  boys had  been murdered.  The letter further alleged  that the  local police had been threatening the parents  of the  deceased and other people living in the locality. The local people were, therefore, feeling insecure and had  lost confidence  in the administration. They wanted that investigation  should be  conducted by  an  independent machinery which  would command  confidence and be acceptable to the local people. They also asked for adequate protection to be given to the residents of the area.      In the  second letter similar allegations were made but certain details  not given  in the  first letter  were given regarding the  incident  C  and  the  following  relief  was claimed:      "Hence on behalf of residents of Barrackpore our humble      prayer to  the Honourable  Chief Justice  is  that  the      Government should  instruct some  neutral  organisation      like C.B.I.,  to investigate  in  search  of  unnatural      death and  solve the  mystery to  satisfy the people of      this area  and the soul of State. This is apparent from      delay in  investigation, its  incidents and  in flow of      publicity that  when some  neutral active investigation      the reason of such death or who is the murderer or what      is the  real mystery  cannot be known definitely. After      C.B.I.  Or   some  such   organisation  con  ducts  the      investigation, we  the residents of Barrackpore promise      to help them with heart and soul. Our humble submission      is that  you may  kindly accept our requests and try to      stop the  police from  this negligence in investigation      and also  stop them  from  submitting  motivated  false      informations and  also we  submit that  through neutral      investigation the real mystery should be exposed to our      contention. In  case the  police or  some persons  have      some kind  of motivation  behind  this  the  Honourable      Court may  take a  role to set a precedence by ordering      investigation into that."           (Translated from the original letter in Bengali).      On June  6, 1983,  the  learned  Acting  Chief  Justice directed the  letters to  be treated  as a writ petition and asked the  same to  be placed  before Borooah, J. On June 7, 1983, the matter appeared 262 before the  learned judge.  Mr. Ghosh  appeared on behalf of the persons  who had  written the  letters. Mr.  Shankar Das Banerjee appeared  on behalf  of  Ananda  Bazar  Patrika,  a

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widely circulated Bengali daily from Calcutta, in two issues of which  dated May  12 and  May 18,  1983 detailed  reports about the  incident on  the basis  of investigation  said to have been  carried by  a private  detective agency  known as ’The Secret  Eye’. Borooah,  J. read  the  letters  and  the reports in  the two issues of the newspaper, heard Mr. Ghosh as also Mr. Shankar Das Banerjee and observed, inter alia:      "When an  unnatural death  occurs or a prima facie case      of the commission of a cognizable offence is brought to      the notice  of the police authorities, it is their duty      under the  Code of  Criminal Procedure  to  conduct  an      investigation and  ascertain the  cause of  the  death.      Reading the  letters and the newspaper reports which do      not  appear   to  have   been   contradicted   by   any      authoritative statement from the police authorities, I,      in the  interest of  justice, treat  the two letters as      formal petition  under Article  226 of the Constitution      after dispensing with the necessary formalities .. "      He ordered  that a  rule should  issue to  the State of West Bengal and other State authorities to, show cause why a writ in  the nature  of mandamus may not be issued directing investigation in  accordance with  law to  be conducted over the unnatural  deaths of  Tirthankar Das  Sharma and  Sanjib Chatterjee. He  also directed  cause to be shown as to why a direction may not be given for production of all the records relating to  investigation conducted  till then.  He further directed:      "Pending disposal  of this  rule, I  direct the  Deputy      Inspector General  Bureau of  Investigation, 13 Lindsay      Street, Calcutta-16  to cause an enquiry to be made and      report to this Court by the 23rd of June 1983 as to how      the two boys met their death. The police authorities of      the State  will extend all possible help as required by      the Central  Bureau of  Investigation, and  the  Ananda      Bazar Patrika  will also  make available to the Central      Bureau the  reports submitted  to the  newspaper by the      Detective Agency."      Borooah, J.  further  directed  the  Superintendent  of Police, 24 263 Pargans, to  issue necessary instructions so that the proper protection A  may be  given to the people of the locality of Barrackpore and  threats would  not be meted out to them. He prohibited publications  relating to  the death  of the  two boys in any newspaper within the State of West Bengal.      On June  9, 1983,  an oral prayer was made on behalf of the State of West Bengal for staying operation of the orders and on the following day an appeal was preferred against the order of  Borooah J.  and the  appeal was  placed  before  a Division Bench  consisting  of  Mr.  Justice  Pyne  and  Mr. Justice S. C. Sen. Grievance was made on behalf of the State of West  Bengal that  Borooah, J. had made his order without giving any  notice to  it and  without finding  out  if  the investigation conducted  by the police authorities under the law was  not adequate,  and as  to  whether  the  manner  of investigation was such that it required the Deputy Inspector General of  the Central  Bureau of Investigation at Calcutta to be  appointed  to  enquire  into  the  incident.  At  the appellate stage  on behalf of the State Government materials were placed  before the  Court in  support of its contention that adequate  investigation had been undertaken as would be expected in the ordinary course over an incident of the type under consideration. Long arguments were advanced before the Division  Bench   and  the   two  learned   judges   devoted considerable attention  to the  matter  and  wrote  out  two

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separate and lengthy E judgments-Pyne, J. held that:      "I respectfully agree with the observations made by the      Supreme Court  in the  facts and  circumstances of  the      above case  (Bhagwant Singh  v. Commissioner of Police,      Delhi, [1983] 3 S.C.C. 344). I am also of the view that      in the  facts and  circumstances of the instant case it      would not  be proper  for me to speculate as to whether      the unnatural  death of  the two  boys  was  caused  by      suicide or  murder. I  am, however, very much concerned      with the  question whether  the investigation  into the      cause of  the unnatural  death of  the two  boys by the      appellants is  being conducted  fairly and properly and      after taking  all materials, evidence and circumstances      into consideration  in accordance  with  law..  In  the      instant case  the  Deputy  Inspector  General,  Central      Bureau of  Investigation is not called upon to exercise      any power or to investigate into any 264      matter under  Delhi Special Police Establishment Act or      any other  statuts. In  view of  what has  been  stated      herein before  and in the fact and circumstances of the      case,  I  appoint  Deputy  Inspector  General,  Central      Bureau of  Investigation as the Special officer in this      case. The  Special officer  will make the enquiry about      the  correctness   of  the   facts,   allegations   and      inferences contained  in the  reports of  ’Secret  Eye’      dated 8th  and 14th  May, 1983, as well as those in the      two letters  of the  respondents both  dated 1st  June,      1983,  copies   whereof  are   Annexures  ’A’  and  ’B’      respectively  to   the  affidavit   of  Bappaditya  Roy      affirmed  on   20th  June,  1983  and  in  the  reports      published in  the two  issues of  Ananda Bazar  Patrika      dated May  12 and 18, 1983. I, therefore, direct Deputy      Inspector General,  Central Bureau  of Investigation to      make necessary  enquiry along  the line  aforesaid. For      the purpose  of making  such enquiry  and report Deputy      Inspector General, Central Bureau of investigation will      be entitled  to take into consideration fresh evidence,      oral or  documentary, materials and statements, if any,      offered to  him. The  report of  the  Deputy  Inspector      General,  Central   Bureau  of  Investigation  will  be      submitted to  the trial  court within  three weeks from      date. The  police authorities  of  the  State  and  the      respondents will  extend all  possible help as required      by. the  Deputy Inspector  General, Central  Bureau  of      Investigation in the matter of enquiry.. "            Sen, J. took note of the fact that no opportunity had been  given to the State and its officers by Borooah, J. before he made the order dated June 7, 1983. He also came to hold:      "In my  opinion, in  a case like this, an interim order      directing the CBI to make a report should not have been      passed  without   giving  a   hearing  to   the   State      Government. No  case of  urgency was  made out  at  any      stage. In  my opinion,  an order  of the magnitude of a      CBI enquiry  should not have been passed without giving      a hearing to the State Government."      Sen, J.  took  notice  of  the  fact  that  allegations contained in the 265 letters had  not been  supported  by  affidavit  before  the learned A single judge. He also took notice of the fact that the materials said to have been obtained on investigation by the detective  agency  had  not  been  produced  before  the Division Bench  and no affidavit of any competent person had

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been filed.  Only  two  affidavits  which  came  before  the Division Bench were one by Sampat Lal and the other from the law officer of the newspaper. He, therefore. concluded:      "Mr. Chatterjee  is right in his contention that not an      iota of  evidence has  been  brought  out  in  the  two      affidavits that  have  been  filed  and  also  the  two      newspaper reports  on the  basis of  which the  interim      .order was  passed. CBI  enquiry into a matter which is      already under  investigation of  the State  police is a      very serious  step. There  must be  very  strong  legal      grounds for ordering such an enquiry."      According  to   Sen,  J.  the  writ  petition  was  not maintainable on  the strength of the two letters and the two newspaper reports.  Though conclusions  of Sen, J. were very different from  those of  Pyne,  J.,  yet  he  concluded  by saying:      "Under the  order proposed to be passed, the CBI or any      other agency  of the  Central Government  has not  been      entrusted with  the job  of investigation.  It has been      made clear  that the  DIG, CBI  is being  appointed the      Special officer  and not  the CBI.  The Special officer      will be  at liberty  to appoint  his own  staff for the      purpose  of   investigation.  The  costs,  charges  and      expenses will  be borne by the respondents. There is no      question of  employing the men and resources of the CBI      for the  purpose of carrying out the investigation. The      officers of  the CBI  are not  being entrusted with the      police power  or the  police function  in the  State of      West Bengal in any manner whatever." G      "The DIG,  CBI has  already indicated his unwillingness      to carry  out the  investigation  as  directed  by  the      learned trial  judge. Nobody  can be  compelled to be a      Special officer or a Receiver against his free will and      volition. The  DIG, CBI  is not  obliged to  act  as  a      Special officer of the Court 266      and if he is still unwilling to carry out the duties of      a Special  officer. he  is free to decline it. Specific      provisions have  been made  in the  order proposed. The      parties have been directed to mention the matter to the      Court if  the DIG,  CBI declines  to  work  as  Special      officer. In that event, some other Special officer will      have to  be appointed. I agree to the order that is now      sought to be passed by my learned brother."      The Division  Bench consisting  of Pyne  and  Sen,  JJ. granted leave  to appeal  to this  Court  and  the  criminal appeal has  in due  course been  filed by  the State of West Bengal.      As already  pointed out,  the  special  leave  petition under Article  l 36  of the  Constitution at the instance of the State  covers almost  the same  field  as  the  criminal appeal and,  therefore, it  had  been  tagged  to  be  heard alongwith the  appeal. It  is not  necessary to refer to any particular facts in regard to that special leave petition.      Though  Sen,   J.  had   indicated  doubts   about  the maintainability of the writ petition on the basis of letters sent to  the Court, Mr. Chatterjee fairly conceded before us that he  would not dispute the position that it is open to a High Court  to entertain  grievances received through postal communication and  register the same as a writ petition. Mr. Chatterjee, however,  suggested and  we think  that there is great force  in, the  submission, that when such information is laid before the Court, care and caution should be adopted to ensure  that the  process of  the Court  is not abused or misused. The  Court should be prima facie satisfied that the

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information laid  before the  Court is of such a nature that it calls  for examination  and this prima facie satisfaction may be  derived  from  the  credentials  of  the  informant, namely, what  is the  character or standing of the informant or from  the nature  of the information given by him namely, whether it  is vague  and indefinite  or  contains  specific allegations as  a result  of survey or investigation or from the gravity  or seriousness  of the complaint set out in the information or  from any other circumstance or circumstances appearing from  the communication  addressed to the Court or to a  judge of  the Court  on behalf of the Court. Where the Court is  so satisfied prima facie, the Court may not insist on the filing of an affidavit and may proceed to investigate into the  allegations with  a view  to meting out justice to the persons on whose behalf the communication is 267 addressed. This  would be  so particularly  where to  insist upon an  A affidavit  at  the  initial  stage  may  lead  to perpetration of  injustice or  may give  rise to a situation where from  a practical  point of  view the doors of justice would be  closed to  the poor and the disadvantaged. We may, however, point  out that  where the  Court is  not so  prima facie satisfied,the  Court may  before issuing notice to the opposite party,  ask the  lawyer appointed  amicus curiae to contact the  informant and  file an  affidavit or  a regular writ petition. These are the different procedures which have been adopted by this Court while dealing with communications complaining of  violation of  the rights of the deprived and vulnerable sections  of the community. Since Mr. Chatterjee, has not disputed the validity of the practice of registering of writ petitions on the basis of letters and/or information received by  the Court,  we arc  not called  upon to examine this aspect of the matter any longer.            Mr. Chatterjee appearing in support of the appeal maintained that  under the  Code of Criminal Procedure which lays down the statutory procedure to be followed when report of an  offence is  lodged with  the  police,  the  power  to investigate is vested in the police. Chapter XII of the Code of Criminal Procedure (’Code’ for short) contains provisions regarding the lodging of information with the police as also their power to investigate. It is maintained that as soon as such information was lodged with the police, action as would be proper  in the facts of the case, was taken. According to Mr. Chatterjee,  all possible steps that could be taken were taken without  lapse of  any time,  Borooah, J. did not call upon  the   State  to   produce  the   papers  relating   to investigation and  without  informing  himself  as  to  what action had  been taken on the report lodged with the police, proceeded to  make an  interim order  which had far reaching effect. According  to learned  counsel,  the  Court  had  no jurisdiction to interfere with the investigation which under the law  was vested in the police authorities had so long as there had  been no breach of duty, the Court had no power to intervene particularly  when the  matter was  still  in  the hands of  the investigating agency. No opportunity was given to the local police, or for the matter of that, to the State Government, to  produce the  records of investigation. Thus, without informing  himself of  the actual stage and position of the investigation already undertaken by the local police, the  learned  single  judge  proceeded  to  act  on  certain assumption for  which there  was no  basis or foundation. It has been the submission of H 268 Mr. Chatterjee  before us  that  the  State  Government  was entitled to  notice before the impugned direction on June 7,

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1983, was made and the real effect of the direction being to disturb the  investigation by  introducing a  new channel of inquiry, the  rules of  natural justice  required  that  the State  and   the  police  authorities  in  whom  vested  the statutory  jurisdiction  to  investigate  should  have  been provided a  hearing.  Mr.  Chatterjee  also  canvassed  that between ’inquiry’  and ’investigation’  there  was  a  clear distinction under  the Code and while investigation referred to the  procedure of  collection of  evidence conducted by a police officer  or by  any  other  person  authorised  by  a Magistrate in  that behalf,  ’inquiry’ referred  to  inquiry other than a trial conducted by a Magistrate or a Court. The main  distinction,   therefore,  was   that  inquiry  was  a magisterial process  while investigation  was the process of collection of  evidence through the police machinery and the net effect of the impugned order of the learned single judge was actually  the setting  up of  an  investigating  agency. Though in  the order  there was  reference to appointment of the DIG,  CBI as a Special officer, what he was to carry out was referred  to as an inquiry. Continuance of investigation through two  separate machineries-one  by the  agency of the CBI and  the other by the normal investigating agency of the police was  bound to  create  confusion  and  prejudice  the investigation into the truth of the allegations.      Mr. Ashoke  Sen appeared  for the  respondents who  had written the  letters to the High Court while Mr. Shankar Das Banerjee  represented  the  Ananda  Bazar  Patrika.  Learned Additional Solicitor General appeared before us on behalf of the Union  Government. Mr.  Sen and Mr. Banerjee refuted the contentions advanced  on behalf  of the  appellants  by  Mr. Chatterjee.               Before  we  proceed  to  closely  examine  the submissions advanced  by counsel  for  the  parties,  it  is proper to  clear the  ground and  formulate the exact points which require  examination. It  is certainly  not  for  this Court at  the  present  stage  to  examine  and  come  to  a conclusion as  to whether  this was  a case  of  suicide  or murder.  If  as  a  result  of  investigation,  evidence  is gathered and  a trial  takes place  the Sessions  Judge will decide that  controversy and  it may  be that  in due course such controversy  may be canvassed before this Court in some form  or   the  other.   It  would,   therefore,  be  wholly inappropriate at this stage to enter such a question. One of the controversies  which loomed  large before  the  Division Bench 269 Of the  Calcutta High Court was as to the appointment of the DIG, CBI to inquire into the matter in the absence of proper consent of  the State Government. That question has not been recanvassed before  us and  it has  been accepted by counsel for all  the  parties  including  the  Additional  Solicitor General that  while section  6 of  the Delhi  Special Police Establishment Act,  1916 (’Act’ for short) would require the consent of the State Government before jurisdiction under s. 5  of   that  Act   is  exercised   by  officers   of   that establishment, when  a direction is given by the Court in an appropriate case,  consent envisaged  under s.  6 of the Act would not  be a  condition precedent  to compliance with the Court’s direction.  In our  considered opinion,  s. 6 of the Act does  not apply  when the Court gives a direction to the CBI to  conduct an investigation and counsel for the parties rightly did  not dispute  this position.  In this  view, the impugned order of the learned single judge and the appellate decision of  the  Division  Bench  appointing  DIG,  CBI  to inquire into the matter would not be open to attack for want

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of sanction under s. 6 of the Act.          Four questions appear to survive for examination:      (1)  Effect  of  violation  of  the  Rules  of  Natural           Justice on the order:-                This can be sub-divided into two aspects:           (i)  Whether the  order of  the  single  judge  is                vitiated having  been made  in  violation  of                rules of natural justice ?           (ii) Whether that order is also bad as the learned                single judge  had not cared to inform himself                as to the stage of investigation and if there                was any lacuna therein ?      (2)  What exactly is the role meant to be played by the           Special   officer    and   whether   the   inquiry           contemplated to  be carried on by him would affect           the investigation which was being conducted by the           local police authorities?      (3)  Is it  open to  the Court  to interfere  with  the           investigation which  is still  proceeding and what           are the  circumstances in which such interference,           if any,  is possible,  and the  guidelines  to  be           followed in such matter? 270      (4)  Whether in  the facts  and circumstances  of  this           case the  direction given  by the single judge and           upheld with  certain modifications by the Division           Bench was proper?      As  already  point  out,  power  vests  in  the  police authorities  of   the  State   Government   for   conducting investigation  into  allegations  relating  to  an  offence. However, the  stand taken  by the  respondents was  that the State Government  and the  police authorities  had not acted properly and  the investigation  was not  being conducted as required by  law. As appears from the order of June 7, 1983, Borooah, J.  directed notice  to issue  to the State of West Bengal as  also to  the other  authorities concerned to show cause against  the issue of a writ. No hearing was, however, afforded to  the  State  Government  or  its  officers  when direction to  appoint the  Special officer  in whom power of inquiry was  to be vested, was made. There could be no scope for  appointing  a  special  officer  unless  the  statutory channel of  investigation was  found not  to have functioned properly. There  was no  basis at  that stage to assume that the contents  of the letters as also the facts stated in the columns of  the newspaper  had not  been contradicted It was the State  Government or  its officers  who alone could have authoritatively indicated  the  facts  showing  whether  the allegations  contained  in  the  letters  or  the  newspaper reports were  true and  if so,  to what  extent, or  how the investigation was  being carried  on and  what stage  it had reached so  as to  enable the Court to come to a prima facie conclusion  that   the  State   Government  and  the  police authorities were  not discharging  properly their  statutory obligation to carry out an investigation. But when no notice was given  to the  State Government  and no  opportunity was offered to  them, it  is difficult  to see  how an  ex-parte order could  be made on such an assumption When we say this, we do  not wish  to be  understood to say that in no case an ex-parte order  can be made by the Court If the faces stated in the letter or the writ petition are credible and there is such urgency  that the  ends of justice might be defeated by not making  an ex  - parte order or giving of notice without ex-parte order  might lead  to aggravation  of oppression or exploitation or  removal or  elimination  of  evidence,  the Court would  certainly be  justified in  making an  ex-parte

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order. But  here there were no such circumstances at all and the  Court  could  have  very  well  issued  notice  to  the Respondents and tried to find out whether there was 271 any necessity  for directing  the appointment of DIG, CBI to act  as  A  a  Special  officer  and  requiring  the  police authorities of  the State to extend all possible help as may be required  by him.  We are  of the  view that  Borooah, J. should have  issued notice to the State Government, afforded a reasonable  opportunity to  it and  its officers  who were already in  session of the investigation to make a report in regard to  the action  taken by  them and  after  making  an overall judicial  assessment of  the situation, the need for appointing a Special officer should have been considered.      The appointment  of a  Special officer with a direction to inquire  into the commission of an offence can only be on the basis  that there  has not  been a proper investigation. There is  a well  defined hierarchical administrative set up of the  police in  the State  of West Bengal as in all other States and  to have  created a  new channel  of  inquiry  or investigation  is   likely  to  create  an  impression  that everything is  not well  with the statutory agency and it is likely to  cast a stigma on the regular policy hierarchy. We are  inclined  .  to  agree  with  Mr.  Chatterjee  for  the appellant that  in the  facts and  circumstances of the case and keeping  the nature  of the  order  made  in  view,  the direction to  appoint  a  Special  officer  with  powers  to inquire should  not have  been made until the appellants had been given  a hearing  and  the  Court  had  the  papers  of investigation laid before it for being prima facie satisfied that  the  investigation  had  either  not  been  proper  or adequate.      The procedure  laid down  in  the  Code  is  clear  and definite. It  may be that in a given case the Court on being prima facie  satisfied from circumstances appearing from the record that  the statutory  agency  has  not  worked  in  an effective way  or the  circumstances are  such that  it  may reasonably be presumed or inferred that the statutory agency may not  be able  to discharge its function of investigation fairly   and    impartially   might    reasonably   consider supplementing  the   procedure,  but   as  we  have  already indicated, there  was no adequate material on the record for the learned  single G  judge to  be satisfied that the facts warranted appointment of a Special officer.      Borooah, J.  did not describe the DIG, CBI as a Special officer. It  is in  the judgment  of Pyne,  J. that  we find reference to this term. In his judgment Pyne, J. noted; 272      "In view  of what has been stated here in before and in      the facts  and circumstances  of the  case,  I  appoint      Deputy   Inspector    General,   Central    Bureau   of      Investigation as the Special officer in this case."                                       (underlining is by us) Having thus appointed him as a Special officer, he proceeded to indicate  that the  Special officer  will make an enquiry about  the   correctness  of   the  facts,  allegations  and inferences contained  in the  reports of  ’Secret Eye’ dated the 8th  and the  14th May  1983 as well as those in the two letters of  the respondents  both dated 1 June, 1983, copies whereof  are  Annexures  A’  and  ’B’  respectively  to  the affidavit of Bappaditya Roy affirmed on 20th June, 1983, and in the  reports published  in the two issues of Ananda Bazar Patrika dated  May 12  and 18, 1983. Sen, J. in his separate judgment made  it clear  that under the order proposed to be passed, the  CBI or  other agency  of the Central Government

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was not being entrusted with the job of investigation.      Investigation into  the allegations  had  already  been undertaken and the papers which have been produced before us indicate that  the first  information lodged with the police was a  missing report dated March 21, 1983. Even when such a report had  been given  contemporaneous steps  were taken to trace the  two missing  boys. the dead bodies were recovered from the  railway  track  on  the  following  day  and  were independently dealt with as the link between the information about missing  of the  two boys  and the two dead bodies had not been  established at  that point  of time.  Autopsy  was conducted in  due course and as the dead bodies had not been claimed by  any relation, the same had been duly disposed of through the  contractor for  unclaimed bodies. For the first time, on  5th and  6th April,  1983 the link was established when the  relatives of the two deceased boys went two Bandel GRPS and  identified the  clothes kept at the police station to be  those that had been worn by the missing boys, and the photographs of  the  dead  boys  placed  the  matter  beyond dispute that  the two  young boys whose dead bodies had been recovered from the railway track and which had been cremated were the missing boys. The parents of the boys met the Chief Minister  on  April  8,  1983.  The  Chief  Minister  issued directions to the police for proper investigation. 273 It is stated that on April 14, 1983, the Chief Minister made a   statement on  the floor  of the  Assembly wherein he had Indicated that the incident appeared to be a case of suicide and not  murder. This  statement of  the Chief  Minister was subjected to  a lot  of criticism  in  the  columns  of  the newspapers  as  also  in  the  body  of  the  letters  under reference. In  course of  hearing  Mr.  Chatterjee  produced before  us   the  official  text  of  the  Chief  Minister’s statement. It  appears  that  he  had  only  said  that  the Investigation carried  on  up  to  that  stage  appeared  to indicate that  it was a case of a suicide. It may not be out of place to point out that the Doctor conducting post-mortem examination had  opined that  it could be a case of suicide. Obviously the  statement on  the floor  of  the  Legislative Assembly was  on the  basis of that medical report which was apparently available to the Chief Minister.      ’Inquiry’  and   ’investigation’  are  statutory  terms defined in  the Code.  We were told in the course of hearing by counsel for the parties that under the West Bengal Police Manual the  terms have  different meanings given to them. It is not necessary for our purpose to go into the question any further. By  whatever name the work entrusted to the Special officer be  called, there  can be  no dispute  that  he  was required  to   ascertain  facts   from  the   witnesses  and documents, if  any, in  regard to the death of the two boys. This process  necessarily involved a fact finding inquiry by ordinarily tapping  the same  sources as  the  investigating agency  was   expected   to   contract.   This,   therefore, necessarily involved a duplicate investigation.      The police had already commenced investigation into the allegations. Under the patronage of the Ananda Bazar Patrika the private  defective agency had also started investigating into the  matter and as would appear from the two reports in the Ananda Bazar Patrika and the materials now placed on the records of the High Court and this Court, some investigation had definitely  been carried  out by  the State agency. This meant that  three separate  channels were put into operation almost contemporaneously.  Over the  activity of the private detective  agency   the  Court   would  ordinarily  have  no jurisdiction to  exercise but in view of the fact that there

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were two  separate  channels  placed  in  active  charge  of investigation to  be conducted  contemporaneously, confusion was bound to occur and working of the two channels at a time was 274 likely to  prejudice the  proper  investigation  making  the exposing of  the truth  buried under mystery more difficult. Carrying this  duplicate process,  in our  opinion, was  not likely to  serve the  cause of justice nor help in achieving the object for which it had been set up. The Special officer was not  to exercise the powers under s. 5 of the Act and if he  wanted   any  real   assistance   in   the   matter   of investigation, it  had to  be  carried  through  the  police officers of  the State  administration. This  was likely  to bring in  further confusion  inasmuch as  the witnesses were likely to  be contacted  by the  same police officer on more than  one  occasion-once  in  the  course  of  investigation conducted by  the police  and again to meet the requirements of the  Special officer.  We are  sure that  the High  Court never intended the cause of justice to be prejudiced and the serious attempt to find out the truth to be aborted.      The next  aspect to be considered is whether it is open to the  Court to  interfere with  the investigation which is still proceeding. It has been conceded before us and rightly in our  view, that  investigation is a matter for the police under the  scheme of  the Code. Judicial opinion seems to be settled and  we have several authorities of this Court where interference by  the Court into police investigation has not been approved.  This question  arose before a Division Bench of three  judges in  an appeal  carried by the same State of West Bengal  in the  case of  State of  West Bengal v. S. N. Basak,(1) Kapoor,  J. quoted  with approval the observations of the  Judicial Committee  in the  case of  king Emperor v. Khwaja Nazir Ahmad,(2) where the Privy Council observed:      "The functions  of the  judiciary and  the  police  are      complementary, not  overlapping, and the combination of      individual liberty  with a  due observance  of law  and      order is  only  to  be  obtained  by  leaving  each  to      exercise its  own function,  always, of course, subject      to  the   right  of   the  Court  to  intervene  in  an      appropriate  case  when  moved  under  s.  491  of  the      Criminal Procedure  Code  to  give  directions  in  the      nature of habeas corpus. In such a case as the present,      however, the Court’s functions being when      (1) [1963] 2 S.C.R. 52.      (2) [1944] L.R. 71. 275               a charge is preferred before it, and not until      then. It has A sometimes been thought that s. 561A (now      s. 482)  has given  increased powers to the Court which      it did not possess before that section was enacted. But      this is  not so,  the section  gives no  new powers, it      only  provides  that  those  which  the  court  already      inherently possesses shall be preserved and is inserted      as  their   Lordships  think,   lest  it  ,  should  be      considered that  the only powers possessed by the Court      are those expressly conferred by the Criminal Procedure      Code and  that no  inherent  powers  had  survived  the      passing of that Act."            The Court added: "With this interpretation, which has been  put on  the statutory  duties and  powers  of  the police and of the powers of the Court, we are in accord." on a finding  that the  High Court had exceeded jurisdiction in interfering with  the investigation, the appeal of the State of West Bengal was allowed.

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    The question again arose in the case of S. N. Sharma v. Bipin Kumar  Tiwari & Ors.(8) on this occasion the Court was called upon to examine the scope of magisterial power. After referring to  the relevant  sections,  the  Court  concluded that:      "The scheme  of these  sections, thus,  clearly is that      the power  of the  police to investigate any cognizable      offence is  uncontrolled by  the Magistrate,  and it is      only  in   cases  where   the  police   decide  not  to      investigate the  case that the Magistrate can intervene      and  either   direct  an   investigation  or,   in  the      alternative, himself  proceed or  depute  a  Magistrate      subordinate to  him to proceed to enquire into the case      The power  of the  police to  investigate has been made      independent of any control by the Magistrate."      Then came the case of State of Bihar v. J.A.C. Saldanha & ors.(2)  In a  peculiar set  of fact  this Court was again called  upon   to  adjudacte  upon  the  scope  of  judicial interference over  investigation. Speaking on this aspect of the matter, Desai,J. spoke for the Division Bench thus:      (1) [1970] 3 S.C.R. 946.      (2) [1980] 2 S.C.R. 1 6. 276      "There is  a clear  cut and  well demarcated  sphere of      activity in  the field  of crime  detection  and  crime      punishment. Investigation  of an  offence is  the field      exclusively reserved  for  the  executive  through  the      police department, the superintendence over which vests      in the State Government. The executive which is charged      with a  duty to  keep  vigilance  over  law  and  order      situation is obliged to prevent crime and if an offence      is alleged  to have  been committed  it is  its bounden      duty to  investigate into  the l  offence and bring the      offender to  book. Once  it investigates  and finds  an      offence having been committed it is its duty to collect      evidence for the purpose of proving the offence for the      purpose of  proving the offence. Once that is completed      and the  investigating officer  submits report  to  the      Court requesting  the Court  to take  cognizance of the      offence under  s. 190  of the Code its duty comes to an      end. On  a cognizance of the offence being taken by the      Court the  police function of investigation comes to an      end subject  to the  provision contained  in s. 173(8),      there  commences   the  adjudicatory  function  of  the      judiciary to  determine whether  an  offence  has  been      committed and  if so,  whether by the person or persons      charged with  the crime  by the police in its report to      the Court,  and to  award adequate punishment according      to. law  for the  offence proved to the satisfaction of      the Court.  There is  thus  a  well  defined  and  well      demarcated function in field or crime detection and its      subsequent  adjucation   between  the  police  and  the      Magistrate." The observation  of the  Privy Council which we have already extracted were again quoted with approval, Desai, J. adding:      "This view of the Judicial Committee clearly demarcates      the functions of the executive and the judiciary in the      field of  detection of  crime and  its subsequent trial      and it  would appear  that the  power of  the police to      investigate into a cognizable offence is ordinarily not      be interfered with by the judiciary."                                           (underlining ours)      This seems  to have  been the  well  accepted  judicial opinion on 277

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the subject.  It is  appropriate at this stage to refer to a later decision  of this  Court which has been relied upon by the Division  Bench of  the High  Court, being  the case  of Bhagwat Singh v. Commissioner of Police, Delhi.(l) That case arose out  of what  is now  being described as the notorious bride burning  incidents. Investigation  had come  to an end and a  conclusion of  the case being one of suicide had been reached. At this stage the Minister of State of Home Affairs in the  Government of  India (the  case related to the Union Territory of  Delhi) had  taken a  decision to  entrust  the investigation again  to the C.B.I. A writ petition was filed before this  Court making  allegations  against  the  police authorities  with   reference  to   the  investigation.  The conclusion of the investigating agency that it was a case of suicide was challenged. This Court clearly indicated:      "It is  not possible  in this case, nor indeed would it      be right  for us  to do  so, to enter into the question      whether  Gurinder   Kaur  committed   suicide  or   was      murdered. That  is a  matter which is properly involved      in the trial of a criminal charge by a court possessing      jurisdiction.  We  are  concerned  here  only  with  an      examination  of   the  question  whether,  after  being      informed  of   Gurinder  Kaur’s   death,   the   police      authorities conducted  themselves as  law  and  justice      required of them."      The Court after dealing with the material placed before it, came to the conclusion:      "Two inferences  follow irresistibly  from the material      before us.  One is that the investigation by the police      following   the    occurrence   was    desultory    and      lackadaisical, and  showed want  of appreciation of the      emergent need  to get  at the  truth of  the case.. The      other inference  which disturbs  us is that the entries      in the  police case diary (set forth in the annexure to      the counter-affidavit on the record) do not a appear to      have been  entered with the scrupulous completeness and      efficiency which  the law  requires of such a document.      The haphazard maintenance of a document of that          (1) [1983] 3 S.C.C. 344. 278      status not only does no credit to those responsible for      maintaining it  but defeats  the very purpose for which      it is  required to  be maintained. We think it to be of      the utmost importance that the entries in a police case      diary should  be made  with promptness,  in  sufficient      detail, mentioning  all significant  facts, in  careful      chronological order and with complete objectivity..’          The Court concluded by observing:      "We have  referred to some of the important features of      the case.  We have  done so  not  for  the  purpose  of      determining  whether  the  girl  was  murdered  or  had      committed  suicide,  but  solely  with  the  object  of      drawing  attention   to  the   manner  in   which   the      investigation of  the case was conducted. Disappointing      as  it   may  seem   to  those  who  have  desired  the      institution of  criminal action  on the  basis  that  a      crime has  been committed,  we do not think that on the      material  before   us  we   can  go   that   far.   The      investigation of  the case  was  transferred  from  the      police administration of Delhi to the Central Bureau of      Investigation at  the instance,  we understand,  of the      petitioner. We  hope and  trust that this investigation      has been completed. If not we would request the Central      Bureau of  Investigation to  complete the investigation      within three  months from today and take such action as

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    may be warranted by the result of the investigation. "      Nothing has  been said  in  this  decision  which  runs counter to  the well  settled proposition  laid down  by the Judicial Committee  of the  Privy Council  and  approved  on three occasions by this Court.      The investigation  in the present case is still pending as we  were told  at the  Bar. It  is quite likely that some day, and  we hope  and trust  that there would we no further delay, the  Court of  competent  jurisdiction  would  be  in seisin of  the matter  and would  be called  upon to  decide whether it  was a  case  of  murder  or  suicide.  We  have, therefore, thought  it proper  exercise of discretion not to enter into  the facts and express any opinion one way or the other so as to prejudice the trial that might take place. It is  sufficient   to  indicate   that  there   is   residuary jurisdiction left in the Court to give directions 279 to the  investigating agency  when it  is satisfied that the requirements A  of the  law are  not being complied with and investigation is  not being  conducted properly  or with due haste and promptitude. The Court has to be alive to the fact that the  scheme of  the law  is that  the investigation has been entrusted  to the  police  and  it  is  ordinarily  not subjeci to the normal supervisory power of the Court. We are inclined, on  the facts  of the case as placed before us, to take the view that the materials placed before the Court did not justify an exception to be made to the rule indicated by this Court  and the appointment of a Special officer was not called for at this stage.      What then  should be the nature of the order to be made in the  case, is  the next  aspect for consideration. On the conclusion which  we have indicated above, the appeal has to be allowed  and the  order of  appointment  of  the  Special officer has to be set aside.      Certain observations  to our  mind are  appropriate and called for regarding further conduct of the investigation by the police  authorities. We  must  indicate  also  that  the investigation carried  out has  not been quite satisfactory. As  already   pointed  out,  the  Chief  Minister  had  very appropriately  ordered   that   a   thorough   and   careful investigation should  be made  into the unfortunate death of Tirthankar and  Sanjeeb. Papers  were produced  before us at time of hearing which indicated. that pursuant to the orders of the  Chief Minister,  the Home  Secretary  had  addressed letters to  the top  police officers  conveying the  serious concern of  the Chief  Minister as also his direction that a thorough and  proper investigation  should be taken up. From the materials  placed before  us, we  have a feeling that in the conduct  of investigation  the police  authorities  have been more  concerned  with  trying  to  establish  that  the reports furnished  by Secret  Eye as appearing in the issues of the  Ananda Bazar  Patrika  were  not  based  on  correct materials and  that proper  conclusions had  not been  drawn rather than  into carrying  on an intensive investigation in an objective  manner. It  further appears that as the police authorities during  their investigation  could not  find any clue to  establish the  kidnapping of  the  two  boys,  they formed a  tentative opinion  that the two boys had committed suicide. This  was based  mere upon  suspicion than upon any clue obtained  during investigation. Once having formed that opinion, it appears 280 from the  materials produced before us that they laboured to justify the  same. The  facts  and  circumstances  leave  an impression  in   our  mind   that  the   investigation   was

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channelised for  collecting materials  to support  that view only.      It is  indeed unfortunate  that in spite of the missing report of  the two boys having been properly lodged with the appropriate police  authorities and  the fact  that the  two boys were  missing have   been  sufficiently  publicised  as ordinarily done,  the bodies of the two boys were allowed to be cremated  even before  an attempt  for identification had been  made.  There  is  some  material  in  the  records  of investigation  indicating  that  two  railway  tickets  from Barrackpore to  Pandua had  been found  in possession of the two dead  boys and  for non-seizure of those two tickets the Assistant   Sub-Inspector   incharge   had   actually   been suspended. It  is indeed  difficult to  understand  why  the Assistant Sub-Inspector  should  not  have  seized  the  two tickets if  they were  found on  the dead  bodies of the two boys, even  if he  felt it  was a  case of suicide. Assuming that this  fact of  recovery of  two tickets  from the  dead bodies of  the two young boys was true, a clue was available than that  two boys  had travelled from Barrackpore and when this link  through the  railway tickets was available, it is incomprehensive why  the police  officers failed  to contact the police  authorities at  Barrack pore.  If that  had been done, there  would have been a possibility of the link being established.  particularly   when  the  missing  report  was available and the investigation of the case could have taken a different turn.      It is  necessary that  the  investigating  agency  must disabuse its mind of the tentative conclusion that death was suicide. Our  saying so  does not  mean that  after a proper investigation they  may not  reach the  same conclusion. All that we  intend to  point out  is that conclusion should not have been  the basis  upon which  the a investigation should have  proceeded.  Nor  had  the  stage  come  to  draw  that conclusion without  further investigation. There are aspects which militate  against the  theory of suicide. Normally one would  not   commit  suide   unless  there  are  strong  and compelling reasons  for it. Thus, ordinarily there has to be a  very  pressing  motive  behind  every  case  of  suicide. Sufficient material  to prima  facie establish the existence of such a motive has not yet been 281 brought on  the record  of investigation.  Both the deceased boys were  teenagers. Tirthankar  has  been  pictured  as  a bright boy good at his studies and appeared to be responsive in nature-took  active interest  in various  fields of  life appropriate for  his age.  The picture  of Tirthankar  as  a disappointed and  frustrated lover is again not supported by much evidence. The reactions of human mind have no set. form and it  may be  that Tirthankar  was an  unusual boy full of sentiments and  could have  acted in  an unusual manner. But that cannot  be a conclusion drawn either on suspicion or on materials which do not readily fit into that theory. Even if the  view   of  the   investigating  agency   in  regard  to Tirthankar’s motive is accepted, there does not appear to be any motive  at all  so far  as his  associate is  concerned, except that as a loyal friend he was prepared to act the way Tirthankar went.  For  Sanjeeb  to  have  chosen  to  commit suicide the  material collected  till now  seems to  be very weak. There have been rare instances where loyalty has known no limitations  but there  is no  justify material to credit Sanjeeb as possessing such a rare quality.       If  suicide had to be committed it did not require the two boys  to travel to such a distance and die at an unknown place on  the railway track. The place where the dead bodies

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were found  was not  indeed very lonely and the apprehension of being detected before the attempt to commit suicide would be successful  could not  be eliminated.  The two  boys were sufficiently grown up to be credited with logical behaviour. There has  been a  lot of criticism and explanation advanced before us  relating to  the  mode  of  travelling  to  reach Pandua. Some  railway tickets were sold for Pandua and there is conclusion  as to  whether the  sale related  to two or 2 tickets. The  material relating  to the time of sale is also not very  clear. If proper investigation is made and further attention is  devoted, it is quite likely that more material would come  to light  on the basis of which one or the other of  the  competing  explanations  for  the  death  can  find credibility and  the investigation  can then  proceed in the right direction.      There is  another aspect  to which  we must immediately turn. Affidavits  and other  materials were placed before us regarding the  investigation-both  by  the  private  agency, namely, Secret  Eye, and the statutory channel. The language used by the top police offers 282 in the  official reports  is indeed  unfortunate. They  have expressed themselves  not only  in intemperate  and improper language but  have even  gone to the extent of being abusive in their  approach. The  language used  in the reply of Shri Debabrat Dhar,  Director of  Secret Eye  to  the  report  is equally bad.  The investigation  conducted  by  the  private agency as also official channel was intended to find out the truth. While  both these  agencies were-or  were required-to devote their  entire attention in unearthing the truth, they should not  have got  themselves entangled  in a  battle  of words. We  indicate our  strong disapproval  of the attitude adopted by both.          Public mind appears to have been greatly shaken and agitated on account of the mysterious death of the two boys. This is  an event  over which  the people  of the  State are justifiably concerned.  They do reasonably expect the police authorities to concentrate their full attention and by using the expertise  at their  command to  unearth the mystery and proceed on the basis of the truth discovered by them. It is, therefore,  necessary   that  greater   candour  should   be exhibited and  the investigating  agency should with an open mind, collect  all the  material  available  and  then  only eliminate that which has to be discarded and retain the rest to be  used for  their 15  purpose.  We  are  alive  to  the position that  there are  occasions  when  death  remains  a mystery in  spite of  the best  of efforts.  But we hope and trust that  with an honest attempt and sincere efforts made, the truth  would be  found out and the police authorities of the State  would be  in a  position  to  give  a  creditable account of themselves.      We do not think there is any necessity to take away the investigation from  the hands  of the State police machinery which is  the statutory agency. . We would, however, suggest that the  Director General  of  Police,  West  Bengal,  will appoint a  competent supervisory  officer  from  the  higher ranks of the State police with expertise in investigation to supervise the  investigation in the present case. The police authorities will,  we hope,  avail of  any credible/material collected by  Secret Eye, if such material is made available to  the  police  authorities.  We  hope  and  trust  that  a determined effort  would be made by the State Government and its Police  authorities to get at the truth and in the event of this case appearing 283

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to be  a case  of murder,  the murderer  would be  proceeded against the  A dealt with according to law. We are sure that the  police  authorities  would  take  it  as  a  matter  of challenge, rise  to the  occasion and  by their performance, justify their  stand in  these proceedings  that  they  were competent to  investigate and  there was no necessity of the CBI being called in, as was done by the High Court.      In  view  of  what  we  have  decided,  no  orders  are necessary in the connected special leave petition. M.L.A.                                       Appeal allowed. 284